Some Tips on Reporting: Prosecuting Attorney Sets TC Newspaper Straight in its Vendetta Against Judge Gilbert

“The space between MS and a black robe” editorial in the Traverse City Record Eagle on July 13, 2004 claimed that as Prosecuting Attorney I have a double standard for prosecutions, noting that, “...multiple sclerosis apparently doesn’t generate the same level of compassion as does someone afflicted with black robe disease.” It added that I or a local police agency failed to investigate and prosecute District Judge Thomas Gilbert for his smoking of marijuana but I am prosecuting Matthew Barber for medicinal use of marijuana to help control the physical debilitations of his multiple sclerosis.
The editorial was grievously erroneous. This editorial unjustifiably undermines public confidence in the local law enforcement community and the Prosecuting Attorneys Office.

A MATTER OF VENUE
There are 83 county prosecutors in Michigan, one for each county. With some minor variations each county prosecutor, by statute, prosecutes crimes that occur in their county. This is called venue. When called upon at trial, a prosecutor must prove that the crime occurred within the prosecutor’s county.
The Record Eagle editorial omitted the location of the rock concert at which Judge Gilbert smoked the marijuana. The editorial explicitly and intentionally omitted the location of the rock concert even though the Record Eagle knew the concert was held in Detroit. The editorial asserts that the rock concert and Judge Gilbert’s offense occurred in Grand Traverse County since the editorial is holding the Prosecutor’s Office responsible for not prosecuting Judge Gilbert. The proper place of any investigation and prosecution of Judge Gilbert was Wayne County, not Grand Traverse County.
As I recall, Judge Gilbert initially claimed that the marijuana use at the concert was caused by his alcohol problem for which he then took a leave of absence and sought treatment. He never said anything then about being a “regular marijuana user.” His version rests on a number of assumptions. One is that he, in fact, had an alcohol problem or was using that as an excuse to help explain away the incident. This is also true of his claim that he was or had been a “regular marijuana user” which he later informed the state Supreme Court. In other words, how credible was his claim of alcoholism or marijuana use?
This leads to an important point: where’s the corroboration of his claim? By law, no person can be tried and convicted in this state based solely on their statements that they committed a criminal offense without some corroboration by physical evidence or other witness testimony. There is no evidence in Judge Gilbert’s case as to offenses at other times or places except a rock concert in another county. In the case of Matthew Barber, he was caught with two ounces of marijuana in a pick-up truck in Grand Traverse County, which he admits was his. The case does not rest solely on Mr. Barber’s statements.
The Record Eagle editorial stated Judge Gilbert wasn’t even asked about those incidents as to “the source of his stash or his knowledge of the local drug trade” by any local police agency, including the Traverse Narcotics Team.
Senator Michelle McManus sent Judge Gilbert a list of questions demanding that he answer those questions within 30 days. Some of those questions were: (a) “From where did Gilbert acquire the illegal substances?” and (b) “Has Gilbert referred his marijuana providers to proper legal authorities, and has the judge ever provided another with marijuana?”
Judge Gilbert, through his attorney, refused to answer the questions. Judge Gilbert chose to use his Federal and State Constitutional rights to an attorney and against self-incrimination, which are available to every citizen.
In light of the documented history of this case and the use of his constitutional rights, Judge Gilbert would not have provided a local police agency with any information.

PUBLIC COMMENT
I don’t know, and by admission neither does the Record Eagle, whether any police agency ever asked any questions. If the Record Eagle wanted to know, all they had to do was serve a Freedom of Information Act request on the local police agencies. The Record Eagle knows what a FOIA request is because our office has received them from the paper in the past. It’s shorter to write an editorial without facts than it is to send a FOIA request and wait for five business days for the public records to use for a factual editorial.
The Record Eagle rebukes me for my “silence in the wake of district Judge Thomas Gilbert’s own marijuana use scandal.” Or “LaBelle didn’t have a public word of outrage for the pot-smoking judge....” My research of the Record Eagle Internet archives indicates that I did make a public comment in the Record Eagle on November 17, 2002 along with many others:
“You can’t drive down crime or control the rate of crime if you don’t have a credible justice system,” said Dennis LaBelle, Grand Traverse County’s prosecutor (quoted in the paper). “That’s really what he’s done, he’s called into question the standards that we have lived under for years.”

This brings us to the conclusion of the current editorial: “Perhaps that’s Barber’s problem: multiple sclerosis apparently doesn’t generate the same level of compassion as does someone afflicted with black rode disease.”
The Record Eagle on July 7, 2004 published an article about Matthew Barber’s arrest and his efforts to legalize medicinal use of marijuana to alleviate the effects of his multiple sclerosis. He appeared in 86th District Court in Traverse City while a support group picketed outside. The article states that he was diagnosed with MS in 2001. Mr. Barber, who served in the army during the first Gulf War, told the Record Eagle reporter that, “I will fight this and we will go the distance, whatever it takes”. He also told the reporter that because all other treatments have failed, a neurologist told him that marijuana may alleviate some symptoms. His wife, Laura, added “(Marijuana) was the last resort.”
Northern Express published an article about Matthew Barber on July 8 stating that he was told by a visiting physician at the Veterans Hospital, where he was a patient two years ago, that marijuana was the only treatment that offered promise for MS patients. The article stated that by smoking marijuana he improved significantly.
Both news articles suggest that he then began to smoke marijuana.
Since Mr. Barber and the support group have decided to try this issue in the press for public support, including the July 13, 2004 Record Eagle editorial, maybe the papers should dig deeper.
I would suggest that newspapers ask Mr. Barber or his attorney, Clarence Gomery, for the following information:
1. Has he ever been arrested or convicted of possession or use of marijuana, and, if so, when and where?
2. Has he ever been arrested or convicted of possession or use of any other controlled substance, and, if so, when and where?
3. Has he ever been arrested or convicted of drunk driving or impaired driving while under the influence of alcohol, and, if so, when and where?
4. A copy of Mr. Barber’s army military records, including a military discharge form DD 214, and including any medical records.
Copies of the Social Security records and the Veterans Administration records may be available through the local offices.
By obtaining these records and, possibly, other information, the issue of whether Mr. Barber is using marijuana for medicinal reasons or for recreation can be resolved. Before attempting to create public sympathy and criticizing local police and officials of a double standard, the public and the Record Eagle should know all the facts before prejudging the case.


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